Any partnership, unincorporated association, private corporation, or individual doing business under an assumed name may sue or be sued in its partnership, assumed or common name for the purpose of enforcing for or against it a substantive right, but on a motion by any party or on the court's own motion the true name may be substituted.

Seidler argues that the court erred because filing suit against "Fish Creek Ranch" properly sued whatever entity it was as a "common name" under Tex. R. Civ. P. 28.

There are several problems with this position.

On a very basic level, the summary judgment evidence shows that no entity (neither the parties named in the lawsuit nor the unnamed Kelley Enterprises) ever did business under the name of Fish Creek Ranch. The evidence clearly shows that although the property upon which business was conducted was identified as Fish Creek Ranch and can easily be considered as the "common name" of the property, there is no evidence to support the predicate requirement. Before the use of a common name is adequate under Rule 28, there must be a showing that the named entity is in fact doing business under that common name.

Simply because a place name may be commonly informally used (as has apparently been done here) does not mean that the name of the site and the type of business conducted there is "doing business as." There was evidence that neither Morgan Land nor Morgan had ever done business under that name and there was no evidence that they ever did. Payments to the employees and to suppliers were not made under the name of Fish Creek Ranch; rather, they were made by Morgan Land. Neither Morgan nor Morgan Land ever adopted the formal assumed name of "Fish Creek Ranch" as allowed by statute; there is nothing in this record to reflect that the use of the name informally was done in any way other than a way to identify a physical asset of the corporation and the kind of business which was operated at that site. The only part of the summary judgment proof that might be said to even indicate that anyone ever did business under "Fish Creek Ranch" is the way that the property was listed on a property insurance policy--along with the then-owner, Kelley Enterprises. (2) The insurance policy generated by the Colorado Farm Bureau insurance company dated May 31, 2007, contains a summary of coverages on a number of pieces of property.

Morgan and Morgan Land argue that this was just the insurance company which so identified the property. We do recognize that an insurance policy is not a unilateral contract; although the insurance company issued the policy, Kelley Enterprises appears to have accepted it, presumably paid for it, and has possibly accepted benefits under it. However, that isolated use in such an unclear setting is not sufficient to stand as evidence that Kelley Enterprises actually did business in that name. It is no more than a scintilla, and only a scintilla that might raise an implication, rather than show a fact.

Further, even if the mention of Fish Creek Ranch in the insurance policy were strong evidence, it would be evidence only of a relationship between Kelley Enterprises and the "Fish Creek Ranch" name. It is no evidence of such a relationship between Morgan Land or Morgan and Fish Creek Ranch. The only way in which this could morph into relevant evidence is if we concluded that there was a fact issue as to whether Morgan Land and Kelley Enterprises were so intertwined as to be the same entity.

In addition, it is more likely that this identification was intended to limit the liability of the insurance company under the policy to the business which was being conducted at that site and not Kelley Enterprises's entire business operations.

Even if we concluded that this is some evidence that both Kelley Enterprises and Morgan Land each did business as Fish Creek Ranch, that does not indicate that Morgan Land would be responsible for liabilities which arose during the time that Kelley Enterprises owned the place and operated under that name, and there is no summary judgment evidence that this kind of liability was assumed by Morgan Land in its purchase of that asset.

Think of an ocean-going tanker which has a name (let us choose "Laura"), which is owned by corporation A; everyone refers to the business operations of that tanker as things done by the "Laura." The "Laura" has a huge oil spill and corporation A thereafter sells the tanker to corporation B, but the name remains the same and everyone still refers to her as the "Laura." Is corporation B going to be responsible for the oil spill? If the sale is an arms-length transaction, it would not be so.

We must also recognize that Seidler did not bring suit against the assumed name. She brought suit against Morgan and Morgan Land, with the notation that those entities were doing business as Fish Creek Ranch. That separates this situation from the one described in Chilkewitz v. Hyson, 22 S.W.3d 825 (Tex. 1999). In that case, the plaintiff sued Hyson as Morton Hyson, M.D., but was informed that the correct defendant would be Morton Hyson, M.D., Professional Association. Plaintiff promptly amended his pleading. The Texas Supreme Court determined that there was some evidence that a professional association comprised of only one professional did business in the name of the individual and had listings and advertisements under the physician's name, which made no mention of the professional association; therefore, suit against the individual under those circumstances would serve to sue the actual defendant, his professional association.

In this case, the suit as filed sought to recover for the alleged negligence of Morgan or Morgan Land, and then identified them as "doing business as" Fish Creek Ranch. There is no evidence that either Morgan or Morgan Land were doing business as Fish Creek Ranch at the time of the injury and there is conclusive proof to the contrary. Although Seidler knew of the incorrect naming shortly after the defendants answered, she chose not to amend her pleadings to add the potentially-liable party. The way in which a suit is brought is solely under the control of counsel, subject to later complaint by the opposing side.

The uncontradicted summary judgment evidence shows the following:

Neither Morgan nor Morgan Land owned Fish Creek Ranch when the injury occurred.Neither Morgan nor Morgan Land used "Fish Creek Ranch" as an assumed name or did business under that name.Neither Morgan nor Morgan Land conducted any business in which they identified themselves as "Fish Creek Ranch."None of the entities that did business involving the ranch when it was owned by Kelley Enterprises either sent invoices addressed to Fish Creek Ranch nor were paid by any means which mentioned Fish Creek Ranch; rather, only Kelley Enterprises was billed or paid. Likewise, after the property was conveyed to Morgan Land, it did not use "Fish Creek Ranch" in its billings or payments.There is neither any evidence that Fish Creek Ranch was recognized as a business by the public at large nor was there any evidence that any effort was made by either owner to present it as such."Fish Creek Ranch" was the name of the ranch. Although that was the common name of the location, it was not the common name of the business or owner.Further, applying the language of the rule, even if "Fish Creek Ranch" is the common name of the entity, there was no evidence that it was "doing business as" that name, or that it was an "assumed name" of the business. (3)There is no doubt that "Fish Creek Ranch" was a name commonly used to identify the property. There is no evidence that either entity which owned the place, Morgan Land or Kelley Enterprises, or Morgan did business as "Fish Creek Ranch."

Accordingly, unless some other rule of law intervenes, there is no evidence that the named party is a proper party to this lawsuit, and summary judgment was therefore properly rendered.

We now move to Seidler's alternative arguments in which she attempts to interpose such alternative theories of law.

Joint Enterprises?

Seidler argues that there is some evidence that Morgan Land and Kelley Enterprises were engaged in a joint enterprise to acquire and hold Fish Creek Ranch for the use and benefit of the Morgan family and, on oral argument, that the two businesses were possibly alter egos of one another. She argues that we should pierce the corporate veils and conclude that the two entities are in reality a single entity with a single purpose. Thus, she concludes, by suing one, she also simultaneously sued the other.

Texas has adopted the restatement standard, finding that the elements which are essential to a joint enterprise are: (1) an agreement, express or implied, among the members of the group; (2) a common purpose to be carried out by the group; (3) a community of pecuniary interest in that purpose, among the members; and (4) an equal right to a voice in the direction of the enterprise, which gives an equal right of control. Tex. Dep't of Transp. v. Able, 35 S.W.3d 608, 613 (Tex. 2000); Shoemaker v. Estate of Whistler, 513 S.W.2d 10, 14 (Tex. 1974).

Seidler's argument is that Morgan Land, Kelley Enterprises, and Morgan entered into a joint enterprise to purchase and operate the ranch as a joint activity. The summary judgment evidence contains no written agreements among these parties, and there is no direct evidence of such an agreement. The evidence pointed to by Seidler consists of no more than the commonality of officers in the entities, with suggestions that we should ascribe some sinister motive thereto. There is summary judgment evidence that when Kelley Enterprises conveyed Fish Creek Ranch to Morgan Land, it received a secured multi-million dollar promissory note as a part of its compensation.

Further, in order to prove a joint enterprise between the two entities, there must be a common purpose of the two entities. Although Seidler argues that Morgan had a common purpose with Kelley Enterprises, that is not the correct object of an inquiry. She also suggests that the two business entities had a common purpose: to take care of Morgan's asset (the ranch). If that is true, any two companies with common stockholders have a common purpose: to provide for the financial benefit of the stockholders. That is not the meaning of the concept. The term "enterprise" indicates that the entities are engaged in a common activity. Although Kelley Enterprises managed the ranch until its sale, and Morgan Land managed it after purchasing it, that does not suggest that the two entities were one.

Additionally, at oral argument, Seidler's lawyer stressed that both Kelley Enterprises and Morgan Land existed for the benefit of the Morgan family and, therefore, (1) should be treated as a single entity, subjecting both to liability and (2) that this somehow made Morgan individually liable.

The fact that the Morgan family would benefit from the actions of both entities is not a determinative factor. A major purpose of a corporation, a limited liability company, or a limited partnership is to provide a shield to personal liability. Although this legal shield may be inconvenient to her theory of recovery, to Seidler it is an inconvenient truth which may not be ignored.

Even without parsing the two remaining elements (as there is no evidence of these two elements), then neither the joint enterprise theory nor the alter ego theory could bring Kelley Enterprises into the ambit of the named parties.